Volume 7 — North Dakota Reports

<p>Highways — Establishment—Location.</p> <p>Under the statutes in force for the establishment by county commissioners of highways in 1880, and where there was no objection to the highway or the report of the viewers, such highway, if established at all, must be established as located and described by the viewers.</p> <p>Location Fixed by Viewers Controls.</p> <p>While the statute provided that the plat and notes of the county surveyor, when a survey had been ordered by the board, should be held as presumptively correct, yet, when such plat differed from the location fixed by the viewers, the latter must prevail.</p> <p>Definiteness of Proceedings.</p> <p>When the proceedings under the statute to create a highway are so definite and certain that a competent surveyor, with the records before him can locate the road, they are sufficient.</p>

Action by the Bank of Gilby against S. L. Farnsworth. Judgment for defendant. Plaintiff appeals. The failure of plaintiff to present the original bill was caused by circumstances over which' it had no control, and his failure to present it is thereby excused. Section 4944, Rev. Codes; Wind-ham Bank v. Norton, 22 Conn. 213; Pier v. Heinriclisoffen, 67 Mo. 163; Brown v. Olmstead., 50 Cal. 162.

Allen J. Wine, informed against as Joseph Miller, was convicted of embezzlement, and appeals. Defendant’s plea in abatement should have been sustained. It is not competent to try defendant upon a different charge from that named in the requisition upon which he was brought into the state. State v. Hall, 19 Pac. Rep. 919. No conviction for embezzlement can be had until a demand has been made for the property claimed to have been embezzled. Peo. v. Tomlinson, 5 Pac. Rep. 509.

<p>Appeal from District Court, Barnes County; Rose, J.,</p> <p>Actions by the Iowa and Dakota Land Company against Barnes County. Judgments for defendant, and plaintiff appeals.</p>

Action by Katherine Welter against C. A. Jacobson, sheriff of Walsh County. Judgment for plaintiff, and defendant appeals. The complaint does not state a cause of action in that it is no where alleged that plaintiff was the owner, in possession or entitled to the possession of the grain at the time the same was seized by the sheriff. An allegation that plaintiff was owner at the time suit was begun is not sufficient. Pitts Agr.

<p>Conversion — Review of Evidence.</p> <p>New trial ordered because the verdict was not supported by the evidence.</p>

Action by the Red River Lumber Company against the Congregation of the Children of Isræl, B. Friel, and others, to foreclose a mechanic’s lien. From a judgment for defendants, plaintiff appeals. The mechanic’s lien law is exclusively a creature of the statute. Phillips Mech. Liens, § 14. Our statute and that of South Dakota are the same.

Edward D. Campbell was convicted of burglary, and he appeals. It was incompetent to introduce and parade before the jury the burglars tools, without in any manner connecting the defendant with their use. People v. Winters, 29 Cal. 659; Peo. v. Kennedy, 32 N. Y. 223; Peo. v. Sansome, 24 Pac. Rep. 143. The inculpatory evidence being purely circumstantial, it was error to refuse an appropriate instruction expounding the nature and cogency of that character of proof.

<p>Appeal from District Court, Stutsman County; Rose, J.</p> <p>Edgar W. Camp was adjudged guilty of contempt of court, and he appeals.</p>

<p>Appeal from District Court, Cass County; Lauder, J.</p> <p>John B. Haynes was convicted of burglary, and appeals.</p> <p>It was error to allow Mrs. Webster to testify for the state over defendant’s objection, her name not being indorsed upon the information. State v. Kent, 5 N. D. 535; Peo. sr.Hall, 12 N. W. Rep. 667; Peo. sr. Howes, 45 N. W. Rep. 962; Peo. v. Quick, 25N. W. Rep. 302; Gandy v. State, 40 N. W. Rep. 305; Stevens v. State, 28 N. W. Rep. 304; Binklysr. State, 52 N. W. Rep. 708. When a witness is cross-examined on a matter collateral to the issue, his answer cannot be subsequently contradicted by the party putting the question. Whart. Cr. Ev. 484; Starkie on Ev. 200; Welch v. State, 3 N. E. Rep. 852; 1 Whart Ev. 558-559; Greenl. Ev. 449; George v. State, 20 N. W. Rep. 311; Peo. v. Jones, 31 Cal. 571; Hamilton sr. Peo., 9 N.W. Rep. 248; Peo. v. McKellar, 53 Cal. 65; Peo. sr. Bell, 53 Cal. 119; Johnson sr. Spencer, 70 N. W. Rep. 983; Frederick v. Ballard, 20 N. W. Rep. 872; Pierce v. Schaden, 59 Cal. 540; State v. Townsend, 24 N. W. Rep. 537; Peo. v. Deitz, 48 N. W. Rep. 298; Stokes v. Peo., 53 N. Y. 440; State v. Davidson, 70 N. W. Rep. 879; Carpenter v. Ward, 30 N. Y. 243; Peo. v. Hillhouse, 45 N. W. Rep. 486; Trust Co. v. Montgomery, 46 N. W. Rep. 216; Hooper sr. Browning, 27 N. W. Rep. 419; Simmons v. State, 4 Tex. App. 144; Peo. v. Chin Mook, Sow, 51 Cal. 600; Peo. v. Jenkins, 56 Cal. 6.</p> <p>The witness objected to was not known to the state’s attorney at the time the information was filed. Section 7985, Rev. Codes; State sr. Kent, 5 N. D. 535; Territory sr. Godfrey, 6 Dak. 46, 50 N. W. Rep. 481; State v. Dickson, 6 Kan. 209; State sr. Medlicott, 9 Kan. 282; State v. Lewis, 19 Kan. 265; State v. Cook, 30 Kan. 82; i Pac. Rep. 33. The evidence complained of by appellant was competent as tending to rebut evidence offered by the defense tending to establish an alibi Peo. v. Gibson, 9 Am. Cr. Rep. 85; State v. McKinney, 5 Am. Cr. Rep. 538; Power v. Leach, 26 Vt. 270; Cady v. Owen, 34 Vt. 598; Howe v. Thayer, 17 Pick. 91.</p>

Action by K. I. Mathews against the Great Northern Railway Company for damages for the destruction of hay and grass by fire negligently set out by defendant. From a judgment on a verdict directed for defendant, plaintiff appeals.

<p>Appeal from District Court, Traill County; McConnell, J.</p> <p>Action by A. L. Plummer against A. E. Kelly, and by A. E. Kelly against A. L. Plummer. The actions were consolidated, and judgment rendered for A. E. Kelly. Plummer appeals.</p>

Action by Herman Roehr against the Great Northern Railway Company to recover for hay destroyed by fire negligently set out by defendant. From a judgment for plaintiff, defendant appeals.

<p>Appeal from District Court, Traill County; Pollock, J.</p> <p>Action by the Scottish American Mortgage Company against Harriet E. Reeve and another. Judgment for plaintiff. Defendants appeal.</p>

<p>Review of Questions of Fact When Findings Waived.</p> <p>In a case tried in the District Court under the provisions of section 5630 of the Revised Codes, and brought to this court on appeal, this court will not retry issues of fact in a case where findings of fact are waived below, and never filed in that court. Said section, in connection with section 5467, Id., requires the settlement of a statement of the case embracing specifications the same as in jury cases.</p> <p>Objections to Evidence — How Treated on Appeal.</p> <p>Objections to evidence noted in the court below and preserved in a statement will be reviewed in this court only in a connection with a re-trial of ihe issues of fact, and will not be reviewed as errors merely, as is done in jury cases.</p> <p>Specifications and Assignments of Error.</p> <p>In cases tried under said sections, specifications of error in the statement and assignments of error in this court will be required as in other cases.</p>

<p>Appeal from District Court, Emmons County; Winchester, J.</p> <p>Alec Coudotte was convicted of murder and appeals.</p>

Daniel Maloney, indicted under the name of Thomas Maloney, was convicted of assault with a dangerous weapon, and appeals.

Action by James Black against the Minneapolis & Northern Elevator Company to recover damages for the alleged conversion of wheat upon which said Black held a seed lien. From an order setting aside a verdict for defendant, and granting a new trial, defendant appeals. The account in writing attached to the complaint is not such an account as the statute requires. Parker v. Bank, 3 N. D. 89.

Action by the Gull River Lumber Company against Jerome B. Brock and T. P. Lee to foreclose a chattel mortgage. From an order sustaining a demurrer to the separate answer of the defendant, T. P. Lee, he appeals. The taxes for the years 1890 and 1891 became liens upon the personal property of Brock, prior to the giving of the chattel mortgage to plaintiff, under which it claims the property in controversy. The lien for taxes is therefore superior and paramount.

Action by G. Willett Van Nest against Sargent County and the State of North Dakota. From an order sustaining defendants’ demurrer to the complaint, plaintiff appeals. Section 88, Ch. 126, Laws 1897; is retroactive. This revenue law is borrowed from Minnesota, and this feature of the x-evenue law has been construed as retx'oactive in its effect. State v. Cronkhite, 28 Minn. 197; Easton v. Hayes, 35 Minn. 418; Cole v. Washington,, 35 Minn. 124.

Suit by the Northern Light Lodge, No. 1, I. O. O. F., and Frank Marsh and others, trustees, against M. W. Shanley and T. Mournin, co-partners, and James Kennedy and others as sureties, to recover upon a bond. From the judgment for plaintiffs, defendants appeal. The contract provided that no alterations should be made in the work except on a written order of the architects.

Action by the State of North Dakota against Norman Markuson and another to abate a nuisance caused by the keeping and selling of intoxicating liquors in violation of law, in which a temporary injunction was issued, and the state’s attorney after-wards filed an affidavit showing that defendant Markuson had been guilty of a contempt of court in that he had violated the injunctional order.

<p>Appeal from District Court, Barnes County; Glaspell, J.</p> <p>Patrick M. McNulty was convicted of conducting a liquor nuisance, and appealed.</p>

John O’Grady was found guilty of contempt, and sentenced to imprisonment in the county jail for ninety days, and to pay a fine of two hundred dollars, and that he be imprisoned in said county jail until the fine is paid in addition to the ninety days imprisonment and beginning at the expiration thereof, nor exceeding however, one hundred days additional. He appealed.

<p>Frivolous Appeal — Damages.</p> <p>In this case a penalty of 10 per cent, is awarded respondent on the ground that the appeal was taken solely for delay.</p>

Action by R. S, Heckman against P. S. Evenson to recover damages for personal injury. Verdict and judgment for plaintiff for $500 damages. Defendant appeals from an order denying him a new trial. The evidence shows that the surface of the stones in the street though uneven, were in such shape that traffic could be carried on over them more conveniently than before, and that horses stood on them daily.

Action by Owen Fargusson against Frank S. Talcott and Gertrude S. Talcott, to determine adverse claims to real property. From a judgment directing plaintiff to execute to defendants a warranty deed on their payment to him of the amount'found, the plaintiff appeals. Evidence of the practical construction given to a contract by the parties thereto in their dealings under it may be considered in determining a proper construction. Hosmer v. McDonald, 49 N. W. Rep. 112; First Nat.

<p>Action Tried by Court — Evidence Not Received — Mistrial.</p> <p>In this case an issue of fact was joined, and the action was tried in the District Court, without a jury, under § 5630 of the Rev. Codes. At the trial the defendant offered to prove a certain state of facts orally, by witnesses produced by him. The offer and the evidence were objected to on various grounds, and the evidence was excluded by the court, and never taken down in writing or in any manner received or preserved upon the record. Held, that such rulings prevented a trial of the action below, within the spirit and meaning of said section of the code, and that this court cannot consider or dispose of the case finally upon such a reco.rd. The evidence, whether admissible or not, under the rules of evidence, should have been taken down and brought upon the record and transmitted to this court for its consideration.</p> <p>Rules of Evidence Enforced.</p> <p>Held, further, that, while all evidence offered at a trial under said section must be preserved and brought upon the record, such section does not operate to abrogate the common law rules of evidence. Such rules are in full force, and must be applied in the decision of such cases in the District Court and in this court.</p> <p>Mistrial.</p> <p>No trial being had below, within the meaning of said section, the judgment must be reversed, and the record remitted for further proceedings.</p>

Action by the Union National Bank of Oshkosh against the Moline, Milburn & Stoddard Company, James Morrison, Harriet J. Morrison, and others to foreclose a mortgage, and establish the same as a first lien upon the property mortgaged. From a decree awarding priority to plaintiff, the Moline, Milburne & Stoddard Company appeal.

Action by E. E. Redmon, C. Shepard, and George F. Clark, as drain commissioners for Cass County, N. D., against P. P. Chacey. From an order overruling defendant’s demurrer to the complaint, he appeals.

<p>Appeal from District Court, Cass County; Pollock, J.</p> <p>Action by the Red River Valley Land and Investment Company against James H. Smith. From a judgment entered on a verdict directed for plaintiff, defendant appeals.</p>

Proceeding by Wells County against Edwin H. McHenry and Frank G. Bigelow, as receivers of the Northern Pacific Railroad Company, to enforce payment of taxes. A judgment was rendered for plaintiff. Certain questions are certified here by the trial court; Glaspel, J. Section 9, Ch. 67, Laws 1897 is substantially the same as § 1588, Rev. Stats. Minn. 1894.

Proceeding for the disbarment of Robert A. Eaton, attorney-at-law. A judgment of disbarment was reversed, 4 N. D. 514, and the cause remanded, with directions to dismiss. A motion by defendant for the allowance of his costs was denied, and he appeals from the final judgment of dismissal. The office of attorney is a quasi public one, all persons are interested in his rectitude, any person may oppose his admission or may move to suspend or disbar him.

Action by William Fluegel, Jr., against Frank Henschel, Julia A. Henschel, F. W. Froemke, and Richard Crozier, to set aside a conveyance as fraudulent. From a judgment dismissing the action, plaintiff appeals. ' The moment Froemke knew a suit had been commenced, he was aware that the bona fides of the land transfer were involved. This notice was before full payment and as to moneys subsequently paid he was not a bona fide purchaser. Bump. Fraud.

<p>Negligence a Jury Question.</p> <p>Held, that questions of negligence and contributory negligence were properly submitted to the jury.</p> <p>Lookout at Crossings.</p> <p>Bishop v. Railway Co., 4 N. D. 536, followed as to obligation oí railroad company to keep a lookout for persons and property at public crossings.</p>

<p>Appeal from District Court, Grand Forks County; Templeton, J.</p> <p>Replevin by William Deering & Co. against Hans Hanson and another. Defendants had judgment, and plaintiff appeals.</p>

Suit by Louisa Kirschner against Joseph Kirschner for a divorce. There was a decree for plaintiff, and from an order setting it’aside she appeals.

John Tomlinson was convicted of keeping intoxicating liquor for unlawful sale as a beverage, and appeals. Appellant was denied his statutory right of challenging peremptorily six jurors. This was error. Peo. v. O’Neil, 61 Cal. 433; Peo. v. Harris, 61 Cal. 136; U. S. v. Dunn, 3 Mackey, 151; Peo. v. Com-stock, 55 Mich. 405, 21 N. W. Rep. 384; Schumaker v. State, 5 Wis. 324; 1 Thomp. Tr. 44. The juror Johnson was disqualified because of actual bias. 1 Thomp.

Taylor Crum was convicted of criminal contempt, and appeals. This proceeding was a criminal prosecution within the meaning of section 97, article 4 constitution, and should be carried on in the name and by the authorty of the State of North Dakota. State v. Hazledahl, 2 N. D. 521; Cox v. State, 8 Tex. App. 254, 34 Am. Rep. 746; Lemons v. Peo., 6 Am. Rep. 293; Nicholas v. State, 35 Wis. 308; Williams v. State, 27 Wis. 402; Lopez v. Peo., 19 Mo. 244.

Insolvency proceedings by the Red River Valley National Bank against Carl A. Kaeppler. Defendant had judgment, from which plaintiff appeals subsequent to a judgment rendered on defendant’s voluntary petition in insolvency adjudging him insolvent.

Action in claim and delivery by the First National Bank of Mandan, N. D., against Levega S. Scott, to recover possession of a band of sheep. Plaintiff claimed the right to possession as the owner of a note and chattel mortgage thereon given to secure the purchase price of the sheep.

Taylor Crum was disbarred from further practicing as an attorney-at-law, and appeals. The prosecution is defective not being carried on in the name and by the authority of the State of North Dakota as required by the constitution. Section 97, Art. 4, Const.; State v. Hazledahl, 2 N. D. 521; Cox v. State, 8 Tex. App. 254; Lemons v. Peo., 6 Am. Rep. 293; Nicholas v. State, 35 Wis. 308; Williams v. State, 27 Wis. 402; Lopez v. State, 19 Mo. 244.

Action by Daniel C. McAllister against Adelaide V. McAllister, for divorce upon the grounds of extreme cruelty. Defendant had judgment and plaintiff appeals. Extreme cruelty is the infliction by one party of grievous mental suffering upon the other. Section 2739, Rev. Codes; Barnes v. Barnes, 95 Cal. 71, overruling Waldron v. Waldron, 85 Cal. 231; Smith v. Smith, 48 Pac. Rep. 730; 1 Bish.

Action in claim and delivery prosecuted by E. F. Wilson against John Rustad to recover the possession of a span of mules, wagon, and a harness. Plaintiff based his right to possession upon a note and chattel mortgage given by Charles Vail and Thomas T. Jones, of Day County, South Dakota, to him to secure the purchase price of this property. Defendant claimed to be an innocent purchaser without notice. Defendant had judgment upon a verdict in his favor, and plaintiff appealed.

Action by Jay F. Russell against Christopher Meyer, August Meyer and William Dunham to recover damages against the defendants, for unlawfully and forcibly entering upon the premises of plaintiff and injuring them by the destruction and asportation of a frame barn. Trial by jury and a verdict for plaintiff for $50.00, a new trial denied, defendants appeal. Plaintiff should have been inquired to elect as to the character of his action.

Action by Thomas C. Kelley against the Cargill Elevator Company to recover for the conversion of five hundred and forty-eight bushels of wheat. Verdict and judgment for plaintiff and defendant appeals. The stub book kept by denfendants agent was not primary evidence. In the case of a check, the check would be the best and primary evidence and the stub secondary evidence only.

<p>Account Stated — Correction—Burden of Proof.</p> <p>An account stated can be opened for correction only upon the ground of fraud, mistake, accident, omission, or undue advantage, and the burden rests upon the party seeking to open the account.</p> <p>Evidence Insufficient to Impeach Stated Account.</p> <p>Evidence in this case held, on full consideration, insufficient to overcome the the strong prima facie case arising from an account stated.</p>

<p>Appeal from District Court, Cass County; Lauder, J.</p> <p>John B. Haynes was convicted of burglary, and appeals.</p> <p>In view of the courts charge that there was no direct testimony but the testimony of the witness Reams, he should have instructed that Reams was an accomplice and the refusal of the court to give defendant’s request on this subject was prejudicial error. Knowlan v. State, 19 Ohio Rep. 13; 10 Crim. L. Mag. 172; Peo. v. Ames, 39 Cal. 403; Peo. v. Thompson, 50 Cal. 480, Abb. Tr. Cl. Bf. 452. When the testimony against the defendant is that of an accomplice, failure of the court to instruct the jury on the law upon that phase of the case is error. Brown v. State, 20 S. W. Rep. 924; State v. Coudotte, 7 N. D. 109, 72 N. W. Rep. 913; 2 Thompson on Trials, § 2427; Peo. v. Elliot, 106 N. Y. 292. If the jury had been instructed upon the point in question, they might have found that the evidence was insufficient to corroborate Reams. Peo. v. Maine, 114 Cal. 634; Peo. v. Smith, 98 Cal 218; State v. Kent, 4 N. D. 577; 2 A. and E. Ene. L. 393. The court should have charged the language of the statute as to accomplice and the necessity for his corroboration. Owens v. State, 20 S. W. Rep. 558; Peo. v. O’Neil, 109 N. Y. 267; Com. v. Holmes,. 127 Mass. 424; State v. Maney, 54 Conn. 178; 9 Cr. L. Mag. 32.</p> <p>The question as to whether or not Reams was an accomplice, was for the jury and not for the court to determine. State v. Lawler, g N. W. Rep. 702; Peo v. Sansome, 33 Pac. Rep. 202; Peo. v. Bollinger, 11 Pac. Rep. 799; Com. v. Clover, in Mass. 395; Dill v. State, 28 S. W. Rep. 950; Williams v. State, 25 S. W. Rep. 629; 1 A. and E. Ene. L. 2nd Ed. 393. The omission of the trial judge to charge the jury upon a particular point is not error, unless the court is asked to do so at the trial by a proper request. State v. Lawler, 9 N. W. Rep. 702, 28 Minn. 216.</p>

The plaintiff on the 15th day of April, 1886, recovered a judgment in the District Court of Burleigh County, Dakota Territory, against the defendants John A. McLean, and William Braithwaite for the sum of $973.35. The judgment was based upon a note on which Braithwaite was surety for McLean. Execution issued April. 17th, 1890 and was returned wholly unsatisfied May 25th, 1891.

Action by James M. Woods against George H. Walsh and Laura M. Walsh to foreclose a mortgage. From a judgment dismissing the action, plaintiff appeals. Champerty and maintenance are not recognized under the New York practice from which our code and practice are taken. Sedgwick v. Stanton, 14 N. Y. 280; Voorhees v. Dorr, 51 Barb. 580; Fowler v. Callan, 102 N. Y. 395, 7 N. E. Rep. 169; Rev. Codes, § § 7001, 7009. Neither in California or other states.

Action by B. E. Ingwaldson, as trustee for Paul Olson and Ovedia Olson, against J. L. Skrivseth and Bertha Skrivseth, to set aside a deed. Defendants had judgment, and plaintiff appeals.

Action by H. W. Cowan against Michael B. Farrell and James Farrell. From a judgment of the District Court reversing a judgment of the justice of the peace in his favor, plaintiff appeals.

<p>Counter Claim — Quieting Title.</p> <p>In an action to quiet title, under § 5904, Revised Codes, the defendant sets up a counterclaim when he alleges that he is the owner of the land, and prays that title may be quieted in him.</p>

Action by the Hillsboro National Bank against James E. Hyde, to recover on an alleged contract. The bank alleged that the respondent James E. Hyde was elected its cashier on the 14th day of January, 1891, upon a salary of $1500 a year in consideration of which he agreed to give his entire time and earnings to the bank.

Action by Charles H. Smith againt Malvina W. Smith for a divorce. From a decree granting plaintiff an absolute divorce, defendant appeals. Respondent came from New York where he had been a resident all his life and unless a change is shown by clear and positive proof he will be presumed a resident of New York. Mitchell v. United States, 21 Wall. 350.

<p>Sufficiency of the Evidence.</p> <p>The verdict for plaintiff in this case cannot be disturbed as not being supported by the evidence, although two witnesses for the defendant testified positively to a state of facts different from what the jury must have found, and their testimony was not directly contradicted, but the testimony of plaintiff tended to establish other facts that could not co-exist with the facts testified to by such witnesses for the defense.</p> <p>Government Survey — Location of Corner.</p> <p>Where the contest was over the location of the original corner as established by government survey, and two different points, and only two, were claimed and testified to as being such corner, it was not error for the court to ask the jury whether such corner was at one point or the other, instead of submitting the general question of where such corner was.</p>

Application by William N. Coler and W. N. Coler, Jr., co-partners as W. N. Coler & Co., for a peremptory writ of mandamus to compel the payment of a judgment held by plaintiffs against Alfred Coppin and others, as directors of Dwight School Township, Richland County. From a final judgment denying the writ, plaintiffs appeal.

<p>Appeal from District Court, Dickey County; Lauder, J.</p> <p>Action by Thomas H. Heald against Erik Yumisko and Ina Yumisko to foreclose a mortgage. Decree for plaintiff, and defendants appeal.</p>

Action by Frank Hicks against F. O. Besuchet. Plaintiff had judgment in the Justice Court, and defendant appeals from a judgment of the District Court affirming the judgment of the Justice Court.

Claim for exemptions as against a creditor by one Carl A. Kaeppler, an insolvent debtor. From a ruling in favor of the insolvent, the creditor appeals. It has been questioned in this state whether exemptions should be allowed in case of insolvency and assignments. Red River Valley Nat. Bank v. Freeman, 1 N. D. 196, 46 N. W. Rep. 36 and § 6046, Revised Codes, was enacted to cure this defect in the law. The homestead claimant must be the head of a family.

<p>Appeal from District Court, Cass County; McConnell, J.</p> <p>Action by the Massachusetts Loan & Trust Company against Treadwell Twichell and E. E. Redmon on a promissory note. Defendants had judgment, and plaintiff appeals.</p>

<p>Bastardy — Appeal—Dismissal—Grounds—Review.</p> <p>Held, that a motion to dismiss an appeal taken from the District Court to this court cannot be sustained upon either or all of the following grounds: (I) On the ground that the specifications incorporated with the statement of the case are insufficient in form or are omitted entirely; (2) on the ground that no assignments of error are made in the appellant’s brief or that an attempted assignment therein is insufficient; (3) on the ground that the statute under which the action is commenced is unconstitutional.</p> <p>Complaint — Probable Cause.</p> <p>Section 7840, Revised Codes, examined. Held, that said section is not repugnant to section 18 of the state constitution. When, under said statute, a complaint in writing on oath, which is sufficient in both form and substance, is filed with the justice of the peace, such complaint constitutes a sufficient showing of probable cause to justify the issue of the warrant, without having recourse to other or extraneous evidence of probable cause.</p> <p>Evidence Sustains Findings.</p> <p>Evidence examined and findings sustained. Held that, this court being in doubt as to the preponderance of the evidence, the same, being in equilibrio, will turn the scale in favor of the holding of the trial court, who saw the witnesses and heard them testify.</p>

<p>Appeal from District Court, Traill County; Pollock, J.</p> <p>Action by E. S. Kneeland against the Great Western Elevator Company. Judgment for plaintiff, and defendant appeals.</p>

Action by C. T. Cleveland against S. A. McCanna. A motion by defendant to set-off a judgment held by him against plaintiff against the judgment rendered in this action was sustained, and plaintiff appeals.

<p>Appeal from District Court, Cass County; Pollock, J.</p> <p>Action by the Wells-Stone Mercantile Company against G. A. Grover and others. Judgment for defendants, and plaintiff appeals.</p>

<p>Appeal from District Court, Traill County; Pollock, J.</p> <p>Action by Maria Arnegaard against Knudt O. Arnegaard, Ole O. Arnegaard, Martinus O. Arnegaard, and Maria O’. Lee, heirs, and H. J. Nyhus, special guardian of Albert O. Arnegaard, Annetta Arnegaard, Andrew Arnegaard, Oscar Arnegaard, Emma Arnegaard and Mabel Arnegaard, heirs and minor children of Ole O. Arnegaard, deceased, to have deeds of certain lands declared void as to her. Defendants had judgment, and plaintiff appeals.</p> <p>The deed was never delivered to or accepted by the grantee, hence never became operative. Prutsman v. Baker, 30 Wis. 644; Bank v. Balihouse, 4 Pac. Rep. 106; Hibberd v. Smith, 4 Pac. Rep. 473, 8 Pac. Rep 46; Fisher v. Flail, 41 N. Y. 416; Fain v. Smith, 12 Pac. Rep. 365; Fitch v. Bunch, 30 Cal. 208; 5 Ene. L. 445; Hathaway v. Payne, 34 N. Y. 106; Comer v. Baldwin, 16 Minn. 172. .The deed must be delivered during the lifetime of the grantor. Parrott v. Avery, 159 Mass. 594; Reichert v. Wilhelm, 50 N. W. Rep. 19; Young v. Guilbean, 3 Wal. 636; Jackson v. Phipps, 12 Johns 418; Heyes v. Boylang, 141 111. 400; Bemison v. Aiken, 102 111. 284; Parmelee v. Simpson, 5 Wall. 86. Placing a deed in the hands of a third person is not a good delivery unless the grantor parts with his dominion over the deed. If the grantor continues till his death to have the right to recall the deed from the depository, there is no delivery. Baker v. Haskell, 47 N. H. 479; O'Connor v. O'Connor, 69 N. W. Rep. 676. The assent of the grantee is necessary to a good delivery. Section 3520, Revised Codes. This is copied from California. Section 1059, Civil Code of Cal.; Hibbard v. Smith, 4 Pac. Rep. 478. If the grantor reserves the right to recall or retake the deed, there is no delivery. Stinson v. Anderson, 96 111. 373; Porter v. Woodhouse, 59 Conn. 568; Weisinger sr. Cock, 67 Miss. 511; Wilson v. Wilson, 158 111. 567; Tyler v. Hall, 106 Mo. 313; Bury v. Young, 98 111. 446; Schuffert v. Grote, 88 Mich. 650; Bovee v. Hindi, 135 111. 137; Fain v. Smith, 14 Or. 82; Lang v. Smith, 37 W. Va. 725. The deed in controversy was in possession of the deceased at his death, this puts the burden of proving delivery upon the grantee. Tyler v. Hall, 106 Mo. 313. The presumption is that the deed was placed in Hyde’s possession as the agent for the grantor. Hale v Joslin, 134 Mass. 310; Ball v. Foreman, 37 Ohio St. 132. The deed to Knudt O. Arnegaard of the homestead was fraudulent as to the homestead rights of the plaintiff. Such transfers after the agreement to marry without the consent of the prospective husband or wife are void. Petty v. Petty, 4 B. Monroe, 215; Swaine v. Perine, 5 Johns. Ch. 482; Cranson v. Cranson, 4 Mich. 230; Pomeroy v. Pomeroy, 54 How. Pr. 228; ICillinger v. Reidenhauer, 6 Serg. and R. 534; Green v. Green, 34 Kan. 740; Hall v. Carmichael, 8 Baxt. 211; Freeman v. Hartman, 45 111. 57; Posten v. Gillispie, 5 Jones, Eq. 258; Tucker v. Anderson, 13 Me. 124; Baker v. Jordan, 73 N. C. 145.</p> <p>The delivery of the deed to Mr. Hyde passed the title, and the fact that the grantor in his life time regained possession of the deed does not defeat the title already passed. Bury v. Yoting, 33 Pac. Rep. 339; Whittenbrock v. Cass, 42 Pac. Rep. 300; Crabtree v. Crabtree, 42 N. E. Rep. 487; Brown v. Westerjield, 66 N. W. Rep. 439; Denzler v. Reckholl, 66 N. W. Rep. 147; Trask v. Trask, 57 N. W. Rep. 841; Gish v. Brown, 33 At. Rep. 60; Crooks v. Crooks, 34 Ohio St. 610; Hatch v. Hatch, 6 Am. Dec. 67; Wallace v. Harris, 32 Mich. 481; Hatheway v. Payne, 34 N. Y. 92; Brown v. Brown, 4 Fed. Cases, No. 1994. At common law a voluntary conveyance by either party to a marriage contract of his or her entire property, without the knowledge of the other and just prior to the marriage was a fraud, this is nqt the law today. Butler v. Butler, 21 Kan. 521, 30 Am. Rep. 441; Green v. Green, 10 Pac. Rep. 156; Hamilton v. Smith, 10 N. Y. 276; Small v. Small, 42 Pac. Rep. 327.</p>

Action by Thomas J. Buxton against Homer E. Sargent to quiet title to certain lands. Plaintiff had judgment, and defendant appeals. A vendor’s lien by statute is subject to the rights of those purchasers only who have bought in good faith and for value. Sections 4830, 4832, Rev. Codes. The action to determine adverse claims to land is equitable in its nature. 3 Pom. Eq. Jr. 1396; Book v. Mining Co., 58 Fed. Rep. 827.

Action by E. I. Donovan against the St. Anthony & Dakota Elevator Company to recover damages for the conversion of certain grain alleged to belong to plaintiff by virtue of a chattel mortgage. From an order overruling a demurrer to the complaint, defendant appeals. The complaint does not aver that at the time the mortgage was executed, the chattels mortgaged belonged to the mortgagor. 2 Cobby Chat. Morts. section 957. The mortgage alone is no evidence of title or possession.

<p>Appeal from District Court, Pembina County; Sauter, J.</p> <p>Ira Weltner was convicted of grand larceny, and appeals from the judgment of conviction.</p> <p>The information depends for its legal existence upon a preliminary examination of the offender. Section 7982, Revised Codes; White v. State, 44 N. W. Rep. 445; State v. Sorenson, 53 N. W. Rep. 1124; State v. Barnes, 3 N. D. 131, 134. Defendant moved to quash the information in proper time in the court below. Subd. 1, § 8082, Rev. Codes. Defendant was entitled to a judicial examination before an impartial magistrate. State v. Brett, 40 Pac. Rep. 873; Packwood v. State, 33 Pac. Rep. 674; State v Barnes, 3 N. D. 131; State v. Kent, 4 N. D. 577; State v. Henning, 3 S. D. 492, 54 N. W. Rep. 536; State v. Evans, 33 Pac. Rep. 1010. The demand for the removal of the case to another magistrate was in time before the-taking of testimony had actually commenced. State v. Evans, 33 Pac. Rep. 1010; State v. Hazledahl, 2 N. D. 521; State v. Kent, 5 N. D. 516-531. When made the justice lost jurisdiction to proceed further. City v. Snyder, 43 Pac. Rep. 635; Hellriegel v. Truman, 19 N. W. Rep. 79; Jenki?is v. Morning, 38 Wis. 197; State v. Sorenson, 53 N. W. Rep. 1124.</p>

Certified questions from District Court, Cass County; Pollock, J, Action by Cass County against certain lands of the Security Improvement Company, Matilda M. Roberts, Mary M. Fisher, C. W. Darling and others, to enforce the payment of taxes delinquent in and prior to the year 1895. Upon petition of defendants the questions mentioned in the opinion were certified to the Supreme Court pursuant to section 10, chapter 67, Laws 1897.

Proceeding by Hiram S. Darling against John C. Taylor, auditor of Kidder County, for a mandamus to compel the issuance of a county warrant. From an order allowing the mandamus, defendant appeals. The amount of bonds and warrants of Kidder County outstanding and unpaid exceeds five per centum of the assessed value of the taxable property therein. Therefore further indebtedness cannot be contracted.

Action by Hedwig Luther against William T. Hunter. Judgment for defendant, and plaintiff appeals. The proof and defendants answer shows that he received the money from the administrator for the payment of Luther’s administration fees of which plaintiff holds an assignment executed before defendant received the money and that defendant received it with knowledge of plaintiffs claim.

Action by the Scottish-American Mortgage Company, Limited, against Harriett E. Reeve and others. Motion by defendants to set aside the judgment was denied, and they appeal. The first judgment herein was rendered October 31st, 1896, during the June term of court. This was set aside and a new judgment entered at a subsequent term, and without notice to defendants. All judgments become final at the end of the term.

Action by Joseph J. O’Leary, by J, D. O’Leary, his guardian, against the Brooks Elevator Company. From a judgment entered on a verdict directed for defendant, plaintiff appeals. The claim that a man can do as he pleases on or within his own premises is not correct. A technical trespass by plaintiff does not bar a recovery. Fisher v. Clark, 41 Barb. 329; Radcliffe v. Mayor, 4 N. Y. 195, 53 Am.

<p>Appeal — Statement of Case Necessary.</p> <p>No statement of the case ever having been settled in this action, there cannot be any review in this court of findings of fact, with a view to determine whether such findings are sustained by the evidence.</p> <p>Court Rules — Abstract of Evidence.</p> <p>Plaintiff’s counsel filed in this court a printed volume, labeled “Abstract,” which volume embraces more than seventy-five pages of matter which appears to be a mere rescript or translation of stenographic minutes taken at the trial, without an attempt at condensation, as required by a rule of this court. Held, that said volume is not an abstract, within the meaning of rule 13 of the amended rules of this court (74 N. W. Rep. viii., 6 N. D. xx.)</p> <p>Form of Abstract — Object.</p> <p>Held, further, that the statute and rule of court which respectively regulate and prescribe the form of a statement of the case, and of the abstract thereof, to be filed in this court, are primarily designed to assist this court in sifting out and deciding the issues in causes brought to this court for review.</p> <p>Counsel Cannot Waive Statute.</p> <p>Held, further, that the action of this court with respect to a review of a case cannot be controlled by counsel who, in a given case, see fit to ignore the statute and rules of court governing the settlement of statements of the case and the preparation of abstracts.</p>

<p>Appeal from District Court, Cass County; Pollock, J.</p> <p>Action by the Q. W. Loverin-Browne Company against the Bank of Buffalo. From a judgment entered on a verdict directed for plaintiff, defendant appeals.</p>

<p>Justice’s Court — Waiver of Service of Summons.</p> <p>Where counsel for defendant in an action pending in. a Justice’s Court, who does not appear specially, appears on the return day, and in open court stipulates orally with counsel for the plaintiff for an adjournment of the hearing of the case to a time agreed upon between counsel, and thereupon the court enters in its docket an order embracing the stipulation and adjourning the case to the time agreed upon, held, that such action constitutes a voluntary appearance in the action on the part of the defendant, and operates as a waiver of any defects in the summons or its service.</p> <p>General Appearance Gives Jurisdiction.</p> <p>Section 6635, Revised Codes, construed. Held, where an action has been commenced by issuing a summons and is pending, the defendant named in the summons may appear generally in such action, and by such appearance will give the court jurisdiction of his person, and this without pleadings being filed by either party.</p> <p>Action May be Commenced Without Service of Summons.</p> <p>Held, further, that said section authorizes an action to be commenced before a justice of the peace by the mere appearance and pleading of the parties without the issue of a summons.</p> <p>Invoking Jurisdiction is a Submission Thereto — Appeal—Effect.</p> <p>Revised Codes, sections 6771, 6779, construed. Said sections do not authorize an appeal from a Justice’s Court to the District Court to be taken upon questions of law alone. Section 6779 provides “that the action shall be tried anew in the District Court in the same manner as actions originally commenced therein.” Accordingly held, where a defendant seeking to dismiss an action upon the ground of nonservice of the summons upon him appeals to the District Court, and states in his notice that the appeal is taken on questions of “law alone,” that defendant, by such appeal, invokes the authority of the District Conrt to hear and determine the merits, and thereby submits himself to the jurisdiction of the District Court.</p> <p>When District Court May Acquire Jurisdiction by Appeal.</p> <p>Held, further, on such appeal, that it is error in the District Court to dismiss the action upon the ground that the justice before whom the action originated never acquired jurisdiction of the person of the defendant. In such case the District Court would acquire jurisdiction independently and by vtrtue of the appeal, whether the justice did or did not have jurisdiction.</p>

Action by Edwin H. McHenry and Frank G. Bigelow, receivers of the Northern Pacific Railroad Company, against J. J. Roper, as treasurer of Stutsman County, and others, to set aside certain tax sales and deeds. From a judgment canceling the deeds, but giving the holders judgment against the receivers for the amount of the taxes, plaintiffs appeal. This case is ruled by the decision of the Supreme Court of the United States. McHenry v. Alford, 18 Sup. Ct.

<p>Appeal from District Court, Grand Forks County; Fisk, J.</p> <p>Action by the Grand Forks Lumber & Coal Company against E. C. Tourtelot. Judgment for plaintiff, and defendant appeals.</p>

F. Knight and H. Crawford, doing business as the Tribune Printing & Binding Company, against O. G. Barnes and others, as board of county commissioners of Cass County. Application dismissed, and plaintiffs appeal.

<p>Action by Cass County against certain lands of C. W. Darling. The District Court certified certain questions for decision.</p>

<p>Action by Cass County against certain lands of Mary M. Fisher. The District Court certified certain questions for decision.</p>

Ejectment by Fred Hewitt against Emil Schultz and Friederika Schultz. Plaintiff had judgment, and defendants appeal. The patent issued to plaintiff is void. The land falls within the exception to section 2258, Rev. Statutes of U. S., it being included in a reservation by proclamation of the president.

Action by Martin Peterson Gjerstadengen and another against G. W. Van Duzen & Co. Plaintiffs had judgment, and defendants appeal. The judgment of the probate court is not open to collateral attack. Freeman on Void Jud.

Action by the Jamestown & Northern Railroad Company against Theodore J. Jones. Defendant had judgment, and plaintiff appeals. Prior to the enactment of the general act of 1875, similar grants had been made to other companies. In construing similar acts the Supreme Court has held that they constituted a present grant, and that the title acquired by settlement subsequently made upon land over which the right-of-way was granted, was subject to such grant.

<p>Appeal from District Court, Cass County; McConnell, J.</p> <p>Action by Henry W. K. Cutter and another against James R. Pollock and another. Defendants had judgment, and plaintiffs appeal.</p>

Action by R. T. Rolph against the City of Fargo and A. T. Shotwell as city treasurer of said city, to enjoin the collection of, and to cancel special assessments levied on property of the plaintiff Rolph, in the City of Fargo, for the paving of Eighth street in said city. Plaintiff had judgment, and defendants appeal. The uniformity rule of taxation prescribed by section 176, constitution, does not apply to special assessments. 25 Am. and Eng. Ene. L. 504, n. 1, 495, n. 7.